Ping-Pong and the health care bill

There is a way for a health care bill to pass soon, without having to pass through very many more 60-senator cloture votes, but it strikes me as highly unlikely and so elaborate that it borders on creepy.

The idea is that the Senate Dems will negotiate in advance a bill that is acceptable to the House Dems. If that were to work and the Senate leadership could get that version over the 60-vote hurdle, and the House were to pass the Senate bill without amending it, the bill could go to the president’s desk without having to go through a conference committee.

The punditocracy has been asserting for many weeks that some kind of major health insurance overhaul was almost certain to pass because Democrats believe that if they head into 2010 without a health bill they will get clobberized in the midterms. This is based on what happened in 1994, when the Clinton health care initiative came up empty and the Republicans picked up a stunning 54 House seats plus eight Senate seats in the midterm and took over control of the Congress for the first time in 40 years.

I’m not sure if I agree that the two situations are perfectly analogous. But even if they are, and even if the Dems are very motivated to pass a bill (which I don’t doubt), on a day-to-day and week-to-week basis, so many Dems are drawing lines in the sand (this one won’t vote for a bill if it has a public option and this one won’t vote aye unless it does have one, and similar red lines are drawn by various members on abortion and etc., etc.) that I find it harder and harder to see how the Dems come out with a bill that passes the Senate (where 60 votes are required to invoke cloture), goes to conference where the House insists on changes, and then gets 60 votes again in the Senate despite those changes which presumably cross the red lines of the wobbliest Dems.

Tough odds

Of course, there is daily, fervid speculation on whether and how this might occur, but it seems that each time the bill has to pass the 60-vote test in the Senate, it faces tough odds.

(By the way: I have heard it said, including recently by Sen. Judd Gregg, Repub of New Hampshire, that a conference report cannot be filibustered and therefore requires only 51 Senate votes. If that were true it would be a very large hole in the power of the filibuster and would seem to make the whole project more likely to end up on the president’s desk. But it isn’t true. Prof. Steve Smith of Washington University, one of the experts who guides me on matters congressional, assures me that:

“The motion to proceed to consider a conference report is not debatable and so cannot be filibustered. But the conference report itself is debatable and so cloture (60 votes) surely will be required on the conference report. That will not be easy if the bill has moved in a liberal direction to compromise with House liberals on the public option, abortion, or other issues.”

But just to get the Senate bill into a conference with the House — this is assuming the Dems have 60 votes for some version of the bill — requires three separate motions, each of which can be filibustered and (given the stated strategy of the Senate Repubs to seize every opportunity for filibuster) would be filibustered.

Every time cloture must be invoked, it takes at least 30 hours of debate, generally consuming two or three days — and again, this is assuming that Majority Leader Harry Reid has 60 solid votes at every turn. So the motivation to avoid a conference committee is pretty high. It just hadn’t occurred to me that it was possible, until Prof. Smith told me of recent buzz around two strategies for avoiding conference.

Under one strategy, sometimes referred to as “ping-ponging,” the Senate would pass its bill (requiring 60 votes) and send it to the House. But then, instead of seeking a conference committee to work out the differences between the House and Senate versions, the House would amend the Senate bill and send it back. If the Senate was ready to agree to that version, it would only need one more vote, still needing 60. If not, they could amend and send it back. (You start to understand where the term ping-ponging comes in.)

The other idea, discussed at length in this Huffington Post piece, limits the ping-ponging to one last ping. Dem leaders of both houses would work out a version of the bill that is acceptable to 60 Senators and a majority of the House (lordy only knows what the details would be) and Reid would assemble all the final changes in one last amendment (known as a manager’s amendment) that would be attached to the bill in the Senate. It’s not hard to get past filibusters to get a vote on an amendment. Then there would be one final Senate hurdle — getting 60 votes for that amended version on final passage in the Senate.

If that works (again, a whole lot of people have to get what they need in or out of the bill), it could pass the House (no filibuster there, a mere majority, but bear in mind that the one version that has passed the House passed by only a five-vote margin), and if the House hadn’t changed it after the manager’s amendment maneuver, it would go to the president’s desk.

'Manager's amendment'

Here’s an excerpt from the HuffPo piece discussing this possibility.

Senate Majority Leader Harry Reid (D-Nev.) is currently negotiating what's known as a "manager's amendment." That amendment includes large and small concerns that senators want worked out before voting to end a filibuster. If Democrats decide to ping-pong the bill, the manager's amendment becomes, in effect, the only place to work out differences.

"I've started hearing about it in the last week or so," said Jim Kessler, head of the group Third Way. Kessler, a former senior aide to Sen. Chuck Schumer (D-N.Y.), is working closely on health care negotiations and said he's heard talk of the ping-pong plan coming from the Hill.

"You would need pre-conference negotiations. That pre-conference negotiation would be what ends up in the manager's amendment," he said. "Essentially, the manager's amendment becomes the new conference."

Kessler said that if it can be done, it should be done. "You've got to keep your eyes on the prize, and the prize is health care reform," he said. "I think it's a great idea if it means health care reform gets passed... Eventually, they're going to have a bill that passes both houses. If you can do it without the long, arduous process, why not?"

As I said at the top, this is so elaborate it borders on creepy. And it always sends me back to wondering whether Americans really prefer a system in which it is this difficult to pass a bill. I do not believe there is a democratic system in the world with this many barriers to enacting the will of the majority of the elected legislators.

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Comments (9)

However, as to the difficulty of ramming something down the throats of a minority -- it seems to me that is just what the founders intended.

The idea was to make it difficult to have a stampede, and it has worked pretty well for a couple of hundred years, through a number of stampedes.

While I might have grumbled as the left does now when majority conservatives faced the same obstacles, I like it just fine right about now.

Of course, there is the other course: a genuine attempt to listen to the opposition with a view to making a bill both sides could support. It would be smaller, but better for both sides and the country. If only either side wanted that...

John, this is not at all what the framers had in mind. The filibuster isn't in the Constitution, merely a hole in the rules. Senate rules allow an enormous amount of power to a minority and even individual senators but assume the Senate consists of reasonable people. If Republicans used filibusters as infrequently as Democrats did, we wouldn't be having these discussions. If Republicans even wanted to find a better way to fix the healthcare system instead of just inflicting defeats, we wouldn't be having these discussions.

To Eric's point, the only legislatures I've heard of that gives so much power to minorities are Iraq and Lebanon. Even Britain's unelected House of Lords can only delay passage, not stop it.

Allowing delays for the sake of lengthy debate is fine, even a good idea, but not letting a minority stop anything from happening. The modern Senate has become dysfunctional.

Remember that the original Senate was composed of 26 male landowners from a much more homogeneous background -- a much 'clubbier' and more personal group.

In the current situation, the requirement of a supermajority means that any health care 'reform' bill that passes both houses is going to be so watered down as to be meaningless.
A couple of small 'bandaids' may survive, but health care reform is DOA.

I agree the filibuster is not constitutionally recognized. Neither is it rejected.

But I maintain that the entire picture presented by EB, including the filibuster accepted in the Senate for a couple of centuries, is precisely what the founders had in mind to curb the ability of a bullying majority of either side to force bad legislation down the throats of the country.

I believe that to focus on the filibuster without looking at the overall system of checks and balances installed by the framers gives a distorted view of their intent.

Actually, if the rumoured Senate bill did pass, it might actually mean something.
While there is no 'public option' per se, there is a good approximation to the successful German system of tightly regulated private but non-profit insurance plans, which do generate competition among insurers because executive pay is partly based on the number of subscribers (see Thomas Reid's excellent book).

And allowing people in the 55-67 range to join Medicare would be a step towards universal coverage.

To John I, responding to your #6: The filibuster is a step well beyond anything the framers intended. The U.S. Constitutional plan by itself, requiring separate actions by two houses and the approval of the president, should provide the U.S. system will plenty of safeguards against tyranny of the majority and the rule of short-term passions (more than I would recommend, personally). But the filibuster, especially as it is now overused for partisan purposes that the Framers couldn't have imagined, is beyond checks and balances.

Ha, if only the health care bills WERE like the German system, where the insurance companies are regulated to a far greater degree than the insurance companies here would stand for. (Isn't it sickening? The companies get to bribe--I mean, "acquire access to"--legislators to create laws and regulations that they [the companies] are willing to obey.)

German insurance companies are required to pay providers promptly without any deductibles. Can you imagine American insurance companies agreeing to that?

Can you imagine American legislators saying to the insurance companies, "We don't care what you agree with. Just obey the laws we make"?